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Questions Can Cause Problems During Fitness-for-duty Exams

By CHANNEZ M. ROGERS, Esq.

Employers, beware of the questions you ask your employees during their annual fitness-for-duty examinations. All-too-familiar questions regarding family medical history and past trips to the hospital may run afoul of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA) when posed by employers on questionnaires meant to determine whether employees can do their jobs.

Channez M. Rogers

Channez M. Rogers

“Have you or any of your family members had any of the following medical conditions?” This is a routine question we all answer at the doctor’s office without hesitation. However, for employers, this question in the context of an employee’s annual fitness-for-duty exam can be a minefield.

The Equal Employment Opportunity Commission (EEOC) has found seemingly routine questions requesting family medical history, as part of an employer’s fitness-for-duty exam, violate the ADA and GINA.

GINA prohibits employers with 15 or more employees from using genetic information to make employment decisions, in order to protect an employee from adverse employment action because an employer thinks the employee is at an increased risk for developing a disease. Therefore, inquiries regarding family history used for the purpose of discovering an employee’s likelihood of having a certain disease or disorder violate GINA.

Likewise, the ADA prohibits employers with 15 or more employees from discriminating against employees based on a disability. Typically, the ADA does not allow for disability-related inquiries or medical examinations for current employees unless the employee has made the employer aware of a disability and requests an accommodation, or if the employer has noticed a change in the employee’s performance that makes him question the employee’s ability to do his job.

So, when may an employer ask health-related questions without violating the ADA or GINA?

Like GINA, the ADA carves out an exception for fitness-for-duty exams for employees in fields affecting public safety. Employers may require employees to submit to an annual fitness-for-duty exam in order to assess whether they are able to perform the essential functions of their jobs as long as there is a legitimate business reason for the inquiry. The purpose of the exam must be to gauge whether an employee is physically able to do his or her job or if the employee will pose a direct threat to safety due to a medical condition. The types of questions and the scope of the medical exam must be job-related and consistent with business necessity.

Appropriate Question Content

The EEOC found that the question regarding family history did not align with the ADA’s requirement that disability-related inquiries be narrowly tailored to address specific, job-related concerns. After all, the employee’s health matters, not her family’s. The question above was too broadly stated and required employees to reveal much more information than is necessary to address their ability to do their job.

Another question the EEOC cautioned employers against asking was whether an employee had been hospitalized overnight for any reason in the past five years. Such a question requires an employee to list any number of ailments or injuries that would require hospitalization, but may have nothing to do with the employee’s ability to do the job now. Additionally, requiring a five-year medical history across the board for employees asks them to reveal information about conditions that may not even affect their ability to work anymore.

A question regarding whether an employee has seen a doctor in the last year for anything other than a routine checkup also violates the ADA in that it is too general and does not address a specific, job-related concern. Instead, such an inquiry requires an employee to reveal private information about a medical condition that may be completely unrelated to the employee’s work, which should not be used to assess the employee’s ability to perform.

Even if no adverse action is taken against an employee, employers should beware of information they receive from a fitness-for-duty examination that might open the door to an obligation to engage in a conversation with the employee to determine whether or not he or she is entitled to a reasonable accommodation to aid in job performance (the interactive process). Absent a showing of undue hardship, which is very rare, an employer is required to provide a reasonable accommodation to an employee with an impairment who has requested and needs one.

Finally, employers should be aware that, if an employee is terminated based on information disclosed in response to a question on the fitness-for-duty form, the employee would likely fall under the protection of the ADA. As a result, the employer would be required to show that the employee could not perform the job’s essential functions or, where the concern is safety, that the employee would pose a “direct threat.”

In light of the EEOC’s explicit warnings regarding medical history and disability-related inquiries, employers would do well to tread lightly when asking questions that may be deemed too broad during their fitness-for-duty exams. When drafting questionnaires for fitness-for-duty exams, employers should carefully consider the employees’ job descriptions, pose only questions specifically related to the abilities required to successfully complete the work, and consult employment counsel with any questions.

Employers should specify on the forms for medical examination that they are only looking for certain information and request medical professionals do not provide anything beyond what is asked. This may ensure employers do not inadvertently receive too much information from third-party medical providers.

Finally, employers should make sure their managers and supervisors are up-to-date with their training to ensure that the interactive process is followed when necessary, and that no medical information is being used inappropriately.

Channez M. Rogers, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]

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